Indictments have been returned in the Southern District of California charging the twelve petitioners with conspiring to violate the Smith Act, 18 U. S. C. (Supp. IV) §§ 371, 2385. Upon their arrest, bail was fixed for each petitioner in the widely varying amounts of $2,500, $7,500, $75,000 and $100,000. On motion of petitioner Schneiderman following arrest in the Southern District of New York, his bail was reduced to $50,000 before his removal to California. On motion of the Government to increase bail in the case of other petitioners, and after several intermediate procedural steps not material to the issues presented here, bail was fixed in the District Court for the Southern District of California in the uniform amount of $50,000 for each petitioner.
Petitioners moved to reduce bail on the ground that bail as fixed was excessive under the Eighth Amendment.
After their motion to reduce bail was denied, petitioners filed applications for habeas corpus in the same
Relief in this type of case must be speedy if it is to be effective. The petition for certiorari and the full record are now before the Court and, since the questions presented by the petition have been fully briefed and argued, we consider it appropriate to dispose of the petition for certiorari at this time. Accordingly, the petition for certiorari is granted for review of questions important to the administration of criminal justice.
First. From the passage of the Judiciary Act of 1789, 1 Stat. 73, 91, to the present Federal Rules of Criminal Procedure, Rule 46 (a) (1), federal law has unequivocally provided that a person arrested for a non-capital offense shall be admitted to bail. This traditional right to freedom before conviction permits the unhampered preparation of a defense, and serves to prevent the infliction of punishment prior to conviction. See Hudson v. Parker, 156 U.S. 277, 285 (1895). Unless this right to bail before trial is preserved, the presumption of innocence, secured only after centuries of struggle, would lose its meaning.
The right to release before trial is conditioned upon the accused's giving adequate assurance that he will stand trial and submit to sentence if found guilty. Ex
Since the function of bail is limited, the fixing of bail for any individual defendant must be based upon standards relevant to the purpose of assuring the presence of that defendant. The traditional standards as expressed in the Federal Rules of Criminal Procedure
If bail in an amount greater than that usually fixed for serious charges of crimes is required in the case of any of the petitioners, that is a matter to which evidence should be directed in a hearing so that the constitutional rights of each petitioner may be preserved. In the absence of such a showing, we are of the opinion that the fixing of bail before trial in these cases cannot be squared with the statutory and constitutional standards for admission to bail.
Second. The proper procedure for challenging bail as unlawfully fixed is by motion for reduction of bail and appeal to the Court of Appeals from an order denying such motion. Petitioners' motion to reduce bail did not merely invoke the discretion of the District Court setting bail within a zone of reasonableness, but challenged the bail as violating statutory and constitutional standards. As there is no discretion to refuse to reduce excessive bail, the order denying the motion to reduce bail is appealable as a "final decision" of the District Court under 28 U. S. C. (Supp. IV) § 1291. Cohen v. Beneficial Loan Corp., 337 U.S. 541, 545-547 (1949). In this case, however, petitioners did not take an appeal from the order of the District Court denying their motion for reduction of bail. Instead, they presented their claims under the Eighth Amendment in applications for writs of habeas corpus. While habeas corpus is an appropriate remedy for one held in custody in violation of the Constitution, 28 U. S. C. (Supp. IV) § 2241 (c) (3), the District Court should withhold relief in this collateral
The Court concludes that bail has not been fixed by proper methods in this case and that petitioners' remedy is by motion to reduce bail, with right of appeal to the Court of Appeals. Accordingly, the judgment of the Court of Appeals is vacated and the case is remanded to the District Court with directions to vacate its order denying petitioners' applications for writs of habeas corpus and to dismiss the applications without prejudice. Petitioners may move for reduction of bail in the criminal proceeding so that a hearing may be held for the purpose of fixing reasonable bail for each petitioner.
It is so ordered.
MR. JUSTICE MINTON took no part in the consideration or decision of this case.
By MR. JUSTICE JACKSON, whom MR. JUSTICE FRANKFURTER joins.
I think the principles governing allowance of bail have been misunderstood or too casually applied in these cases and that they should be returned to the Circuit Justice or the District Courts for reconsideration in the light of standards which it is our function to determine. We have heard the parties on only four specific questions relating to bail before conviction—two involving considerations of law and of fact which should determine the amount of bail, and two relating to the procedure for correcting any departure therefrom. I consider first the principles which govern release of accused persons upon bail pending their trial.
The practice of admission to bail, as it has evolved in Anglo-American law, is not a device for keeping persons
Admission to bail always involves a risk that the accused will take flight. That is a calculated risk which the law takes as the price of our system of justice. We know that Congress anticipated that bail would enable some escapes, because it provided a procedure for dealing with them. Fed. Rules Crim. Proc., 46 (f).
In allowance of bail, the duty of the judge is to reduce the risk by fixing an amount reasonably calculated to hold the accused available for trial and its consequence. Fed. Rules Crim. Proc., 46 (c). But the judge is not free to make the sky the limit, because the Eighth Amendment to the Constitution says: "Excessive bail shall not be required . . . ."
Congress has reduced this generality in providing more precise standards, stating that ". . . the amount thereof shall be such as in the judgment of the commissioner or court or judge or justice will insure the presence of the defendant, having regard to the nature and circumstances of the offense charged, the weight of the evidence against him, the financial ability of the defendant to give bail and the character of the defendant." Fed. Rules Crim. Proc., 46 (c).
It is complained that the District Court fixed a uniform blanket bail chiefly by consideration of the nature of the accusation and did not take into account the difference in circumstances between different defendants. If this occurred, it is a clear violation of Rule 46 (c). Each defendant stands before the bar of justice as an individual. Even on a conspiracy charge defendants do not lose their separateness or identity. While it might be possible that these defendants are identical in financial ability, character and relation to the charge—elements Congress has directed to be regarded in fixing bail—I think it violates the law of probabilities. Each accused is entitled to any benefits due to his good record, and misdeeds or a bad record should prejudice only those who are guilty of them. The question when application for bail is made relates to each one's trustworthiness to appear for trial and what security will supply reasonable assurance of his appearance.
Complaint further is made that the courts below have been unduly influenced by recommendations of very high bail made by the grand jury. It is not the function of the grand jury to fix bail, and its volunteered advice is not
But the protest charges, and the defect in the proceedings below appears to be, that, provoked by the flight of certain Communists after conviction, the Government demands and public opinion supports a use of the bail power to keep Communist defendants in jail before conviction. Thus, the amount is said to have been fixed not as a reasonable assurance of their presence at the trial, but also as an assurance they would remain in jail. There seems reason to believe that this may have been the spirit to which the courts below have yielded, and it is contrary to the whole policy and philosophy of bail. This is not to say that every defendant is entitled to such bail as he can provide, but he is entitled to an opportunity to make it in a reasonable amount. I think the whole matter should be reconsidered by the appropriate judges in the traditional spirit of bail procedure.
The other questions we have heard argued relate to the remedy appropriate when the standards for amount of bail are misapplied. Of course, procedural rights so vital cannot be without means of vindication. In view of the nature of the writ of habeas corpus, we should be reluctant to say that under no circumstances would it be appropriate. But that writ will best serve its purpose and be best protected from discrediting abuse if it
We think that, properly limited and administered, the motion to reduce bail will afford a practical, simple, adequate and expeditious procedure. In view of prevailing confusions and conflicts in practice, this Court should define and limit the procedure with considerable precision, in the absence of which we may flood the courts with motions and appeals in bail cases.
The first fixing of bail, whether by a commissioner under Rule 5 (b), or upon removal under Rule 40 (a), Fed. Rules Crim. Proc., or by the court upon arraignment after indictment, 18 U. S. C. § 3141, is a serious exercise of judicial discretion. But often it must be done in haste—the defendant may be taken by surprise, counsel has just been engaged, or for other reasons the bail is fixed without that full inquiry and consideration which the matter deserves. Some procedure for reconsideration is a practical necessity, and the court's power over revocation or reduction is a continuing power which either party may invoke as changing circumstances may require. It is highly important that such preliminary matters as bail be disposed of with as much finality as possible in the District Court where the case is to be tried. It is close to the scene of the offense, most accessible to defendant, has opportunity to see and hear the defendant and the witnesses personally, and is likely to be best informed for sound exercise of discretion. Rarely will the original determination be disturbed, if carefully made, but if the accused moves to reduce or the Government to revoke bail, a more careful deliberation may then be made on the relevant evidence presented by the parties,
It is my conclusion that an order denying reduction of bail is to be regarded as a final decision which may be appealed to the Court of Appeals. But this is not because every claim of excessive bail raises a constitutional question. It is because we may properly hold appeal to be a statutory right. While only a sentence constitutes a final judgment in a criminal case, Berman v. United States, 302 U.S. 211, 212, it is a final decision that Congress has made reviewable. 28 U. S. C. § 1291. While a final judgment always is a final decision, there are instances in which a final decision is not a final judgment. The purpose of the finality requirement is to avoid piecemeal disposition of the basic controversy in a single case "where the result of review will be `to halt in the orderly progress of a cause and consider incidentally a question which has happened to cross the path of such litigation . . . .' " Cobbledick v. United States, 309 U.S. 323, 326. But an order fixing bail can be reviewed without halting the main trial—its issues are entirely independent of the issues to be tried—and unless it can be reviewed before sentence, it never can be reviewed at all. The relation of an order fixing bail to final judgment in a criminal case is analogous to an order determining the right to security in a civil proceeding, Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, or other interlocutory orders reviewable under 28 U. S. C. § 1292. I would hold, therefore, that such orders are appealable.
I cannot agree, however, that an order determining what amount of bail is reasonable under the standards prescribed does not call for an exercise of discretion. The Court of Appeals is not required to reexamine every order complained of. They represent exercises of discretion, upon questions, usually, of fact. Trivial differences or
If we would follow this course of reasoning, I think in actual experience it would protect every right of the accused expeditiously and cheaply. At the same time, it would not open the floodgates to a multitude of trivial disputes abusive of the motion procedure.
Having found that the habeas corpus proceeding was properly dismissed by the District Court, in which its judgment was affirmed by the Court of Appeals, we should to that extent affirm. Having thus decided that the procedure taken in this case is not the proper one to bring the question of excessiveness of bail before the courts, there is a measure of inconsistency and departure from usual practice in our discussion of matters not before us. Certainly it would be inappropriate to say now that any particular amount as to any particular defendant is either reasonable or excessive. That concrete amount, in the light of each defendant's testimony and that of the Government, should be fixed by the appropriate judge or Justice upon evidence relevant to the standards prescribed. It is not appropriate for the Court as a whole to fix bail where the power has been given to individual judges and Justices to do so. But there is little in our books to help guide federal judges in bail practice, and the extraordinary and recurring nature of this particular problem seems to warrant a discussion of the merits in which we would not ordinarily engage.
It remains to answer our own question as to whether the power to grant bail is in the Court or in the Circuit
Fed. Rules Crim. Proc., 46 (a) (1), with respect to noncapital cases does not state who has power to grant bail before conviction—it simply directs that in such case bail "shall" be granted. For an answer to the "who" question it is necessary to turn to the Criminal Code.
18 U. S. C. A. § 3141, entitled "Power of courts and magistrates," provides:
The power to arrest and commit offenders is contained in 18 U. S. C. A. § 3041, which states that:
The fact that this section specifically grants the power of arrest to "any justice . . . of the United States" supports the conclusion that Justices of this Court have the power of arrest, and, having that power under this section, they therefore also have power to grant bail under § 3141.
The Reviser's Notes to § 3141 disclose that it is the product of Rev. Stat. §§ 1015 and 1016, which were embodied verbatim in 18 U. S. C. (1940 ed.) §§ 596 and 597. The Reviser also states that, "Sections 596 and 597 of Title 18, U. S. C., 1940 ed., except as superseded by rule 46 (a) (1) of the Federal Rules of Criminal Procedure are consolidated and rewritten in this section without
Rev. Stat. § 1015 reads:
"The preceding section," § 1014, is the predecessor of 18 U. S. C. A. § 3041, and reads the same as that section, namely:
Going on in the Revised Statutes, § 1016 states that:
The evident tenor of §§ 1015 and 1016, taken together with § 1014, is that a Justice of this Court is one of many who can grant bail in a noncapital case but is one of a restricted class who can grant bail in a capital case.
To correlate the Revised Statutes with the present statutory scheme:
It thus appears that the scheme of the Revised Statutes has been taken over bodily into the present Code and Rules. The only change I perceive is that, under the Revised Statutes, there was no clear statutory authority for a court to grant bail in a noncapital case. Rev. Stat. § 1015 (and § 1014) applicable to such case speak only of individuals. 18 U. S. C. A. § 3141 confers the power on "any court, judge or magistrate authorized to arrest and commit offenders." The only reasonable construction of the latter is the obvious literal one, that is, that courts as well as the individuals empowered to arrest and commit
That is the one difference between the Revised Statutes' scheme and the present—the power to grant bail in noncapital cases now clearly is vested in the courts as well as in individual judges and justices.
With the premise provided by the Revisor that the power to grant bail before conviction is the same now as under the Revised Statutes, the one exception being the extension to the courts just noted, the conclusion follows that bail can be granted by any court of the United States, including this Court, or by any judge of the United States, including the Justices of this Court.
The next problem is how Rule 45 of the Rules of this Court is to be assimilated with the foregoing. Only the first and fourth subsections of the Rule have any present pertinence. They read as follows:
The next problem is the bearing, if any, of Fed. Rules Crim. Proc., 46 (a) (2), covering the right to bail "Upon Review." It reads:
Insofar as it might be applicable to petitioners' case, since they were seeking a review when they filed their petition for bail, it would not seem that it has any efficacy. They have not yet been tried for the offense for which they have been indicted, so that the much wider powers of bail conferred by the statutes governing bail before conviction are applicable. Rule 46 (a) (2) is only intended to apply where a review of a conviction on the merits is sought.
Turning back to the case at hand, and treating the application to MR. JUSTICE DOUGLAS for bail as one for bail pending review of a denial of habeas corpus, I think it clear that he does not have power to grant bail, but the full Court does have that power. However, since the Court sustains the denial of habeas corpus, treating the application for bail strictly as one pending review of the denial of habeas corpus, the problems it raises are actually moot. If the application to MR. JUSTICE DOUGLAS be treated as one made for fixing bail in the original case, it is my opinion that he has power to entertain it.